Finally, Some Good News: Federal Anti-SLAPP Law Introduced

from the free-speech-ftw dept

It’s been seven years since Congress last introduced a federal anti-SLAPP law (and that was six years after the previous attempt). So here we are, and once again we’ve finally got a federal anti-SLAPP law introduced in Congress, this time by Rep. Jamie Raskin, who recently held a hearing focusing on SLAPP lawsuit attacks against environmental activists (which is where many SLAPP cases have been filed, though the issue is much broader than that).

Again, if you’re unfamiliar, the rich and powerful often will file obviously bogus lawsuits against those who criticize them, knowing that even if they’re going to lose, the time, cost, and stress of a lawsuit is still really damaging (and in many cases, leads those criticizing the rich and powerful to back down and shut up). These are called SLAPP lawsuits, for Strategic Lawsuit Against Public Participation.

Some states (a little more than half right now) have anti-SLAPP laws that aim to protect speakers who are victims of such SLAPP suits. The fundamental way in which anti-SLAPP laws work are that they allow the defendant to argue that the case is a SLAPP, which halts the process for expensive things like discovery, and requires that the plaintiff show some proof that the case is actually legitimate. If they can’t do that, the case is dismissed, and frequently the plaintiff has to pay the defendant’s legal fees.

That is, while it can still be stressful and time consuming, it hopefully gets kicked out of court much more quickly, and can end up costing the plaintiff more money in that they have to cover the legal fees of the person they filed the bogus lawsuit against.

Unfortunately, many states don’t even have anti-SLAPP laws, and even among those that do, it’s a really mixed bag of quality. We’ve seen more and more states start passing such laws, but it’s slow going. Also, there is no federal anti-SLAPP law, and many federal courts have (questionably) decided that state anti-SLAPP laws don’t apply in federal court (there’s a long, boring, procedural argument for why that is, which I think is incorrect). But still, having a strong federal anti-SLAPP law set the floor that can apply across all states and in federal court would be a huge win for free speech.

So special thanks to Rep. Raskin for introducing it.

Raskin’s bill is not perfect โ€” it’s not quite how I’d draft a federal anti-SLAPP law, and I worry a bit that the language of what it covers may limit it and cut out too many SLAPP suits, but on the whole it’s a huge step forward and has many good features. And, this is a case where getting something in place like this is way better than the lack of any protection in place now. If you want a good analysis of where the bill differs from state anti-SLAPP laws, you can read this analysis from EarthRights, who supports the bill.

Key differences include a more limited definition of what cases the bill can be applied to (specifically, the definition of what is “a matter of public concern”), making the fee shifting to be rebuttable rather than mandatory (so plaintiffs can argue why they shouldn’t have to pay defendants’ legal bills) and more efforts to not scare off plaintiffs (kinda required otherwise plaintiff trial lawyers would throw a shitfit). I understand why all of these are included, though I worry about the impact of each. But, on the whole, it’s a good bill, and it’s way better than what we have now (i.e., nothing but a hope and a prayer that Twiqbal and a tidy 12(b)(6) motion to dismiss gets you effectively the same thing โ€” which it does not).

Unfortunately I fear that, like earlier anti-SLAPP bills, this one won’t get very far. That seems to be the way these days. Protecting free speech is boring. Attacking it is the new hotness. But, giving up shouldn’t be an option. Having this bill introduced is a good first step โ€” and it would be great to build some momentum in support of it.

This is good news. At a time when we could really use good news.

Thank you, Rep. Raskin.

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